As of April 22, 2009, pursuant to a court order, the FDA had notified the manufacturer of Plan B that it may, upon submission and approval of an appropriate application, market Plan B without a prescription to women seventeen years of age and older.

We acknowledge that the survey may not accurately reflect the current state of affairs. We expect that on remand, the district court will be provided with more recent and comprehensive data.

According to the survey, 72 percent of pharmacies in the state of Washington had less than 25 requests for Plan B per year. Nearly 13 percent had between 26 and 50 requests; 6 percent had between 51 and 100 requests; and 11 percent had greater than 100 requests.

The first draft of the rule allowed a pharmacist to refuse to fill a lawful prescription if another on-site pharmacist would dispense the medication without delay. One of the second drafts required pharmacists to fill lawful prescriptions, but the alternative second draft allowed a pharmacist to refuse and refer a patient to another provider. The third draft did not require pharmacies to fill lawful prescriptions and allowed pharmacies and pharmacists to refuse to dispense a medication. In response to that draft, Washington State Governor Christine Gregoire offered the assistance of her office to help the Board work toward a solution to prevent the potentially deleterious effects of allowing pharmacists to refuse to dispense legally prescribed medication on the basis of unlimited and illegitimate reasons. A fourth draft was negotiated, but subsequent substantive changes to it precluded agreement. Finally, two more drafts were prepared for public comment, the text of which corresponded substantially with the final rules.

See Wash. Admin. Code §§ 246-869-010(l)(a)-(e), (2) (exempting pharmacies from the general duty to deliver when the prescription cannot be filled due to lack of payment, because it may be fraudulent or erroneous, or because of declared emergencies, lack of specialized equipment or expertise, or unavailability of a drug despite good faith compliance with Washington Administrative Code section 246-869-150, which provides in part that "[t]he pharmacy must maintain at all times a representative assortment of drugs in order to meet the pharmaceutical needs of its patients”).

Named defendants are members of the Pharmacy Board, representatives of the Department of Health as well as the Executive Director and every member of HRC (collectively, “State Appellants”), including Mary Selecky, Secretary of the State of Washington Department of Health ("Department”); Laurie Jinkins, Assistant Secretary of the Department; George Roe, Susan Thiel Boyer, Dan Connolly, Gary Harris, Vandana Slatter, Rebecca Hille, Rosemarie Duffy, members of the Washington State Board of Pharmacy; Mark Brenman, Executive Director, and Yvonne Lopez Morton, Ellis Casson, Deborah Sious Cano-Lee, Jerry Hebert, Shawn Murinko, members of the Washington State Human Rights Commission.

Intervenors are: Judith Billings, Rhiannon Andreini, Jeffrey Schouten, Molly Harmon, Catherine Rosman, Emily Schmidt, and Tami Garrard. In 2003, a pharmacist on duty at a Seattle pharmacy near the University of Washington refused to fill Molly Harmon's Plan B prescription. The pharmacist lectured Harmon about her choice of birth control. Though upset, Harmon insisted on speaking with the head pharmacist who ultimately dispensed the drug. In March 2007, Emily Schmidt was unable to obtain Plan B at two pharmacies in Wenatchee, Washington, because the pharmacy owner or pharmacist refused to dispense the drug. In November 2005, Rhiannon Andreini went to a pharmacy in Mukilteo, Washington, to purchase Plan B when her regular method of contraception failed. The pharmacist appeared to disapprove and stated that the store did not carry it. Andreini drove more than seventy miles back to her home to go to a pharmacy she knew would dispense the drug. Catherine Rosman, a case manager who assists women and adolescent girls suffering from domestic violence, is concerned that refusals to dispense Plan B will compound the trauma that her clients and thousands of girls and women like them will suffer as a result of sexual violence every year in Washington. Rosman has taken Plan B on two occasions, once following a sexual assault. In both instances, she chose to obtain the medication from Planned Parenthood because she heard several accounts of pharmacists refusing to dispense the drug or otherwise harassing patients. Dr. Jeffrey Schouten, a Clinical Assistant Professor of Surgery at the University of Washington and a primary care physician at Washington's largest HIV-specialty clinic, and Judith Billings are HIV-positive. Dr. Schouten testified in favor of the new rules, explaining the importance of timely access to drugs for HIV-positive patients and individuals who have just been exposed to the virus. According to Dr. Schouten, because some people associate HIV status with certain lifestyle choices, these patients are at risk of pharmacy refusals and the serious health risks that accompany delayed access to needed medication.

While the injunction refers only to the anti-discrimination provisions of the new rules, it appears the parties and district court understand that the injunction is intended to stop all enforcement actions under the new rules against any pharmacy or pharmacist refusing to dispense Plan B for whatever reason.

The Supreme Court has elsewhere considered the free exercise rights of business owners. See, e.g., United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (considering the claim of an Amish employer seeking an exemption on his employees' behalf from the payment of social security taxes on religious grounds); Bob Jones Univ. v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) (considering the free exercise claim of nonprofit corporations operating religious schools affiliated with Christianity challenging a tax policy granting exemptions only to educational institutions that do not racially discriminate). Moreover, Townley also indicates that an organization that asserts the free exercise rights of its owners need not be primarily religious, as Townley's main function — manufacturing of mining equipment — was a secular activity.

Whether Mesler’s and Thelen’s claims under the Free Exercise Clause are meritorious is a question distinct from whether they have standing to sue. Intervenors confuse the two issues.

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), which Appellees cite in support of their argument, does not suggest otherwise. In that case, the obscenity commission's notices were sent to specific companies listing particular books the commission wished to censor, with a warning of criminal prosecution. There were also subsequent visits by the police. The notices directly impaired sales. Id. at 62-64, 83 S.Ct. 631. Here, Appellees have not shown any injury from the issuance of the Brenman letter, which was addressed to the Board, not to any pharmacies or pharmacists.

Though the district court did not actually cite Part II.A.2 of Lukumi, it quoted Justice Kennedy's historical analysis verbatim. Compare Stonnans, 524 F.Supp.2d at 1258, with Lukumi, 508 U.S. at 540, 113 S.Ct. 2217 (Kennedy, J., joined by Stevens, J.).

In the only Free Exercise case decided by the Supreme Court since Lukumi, Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), the Court did not resolve this question. In Locke, a majority of the Court held that a Washington publicly funded scholarship program which excluded students pursuing a "degree in theology” did not violate the Free Exercise Clause. Id. at 725, 124 S.Ct. 1307. In reaching this conclusion the Court stated, "[W]e find neither in the history or text of ... the Washington Constitution, nor in the operation of the [challenged law], anything that suggests animus toward religion.” Id. While the Court considered the "history” of the state constitution, it did not consider the history of the challenged law itself. Therefore, Locke does not shed any light on the question of whether it is permissible to consider the legislative history of the challenged law in a Free Exercise Clause analysis.

See supra note 5 (listing exemptions).

The district court's reliance on "[t]he fact that the Pharmacy Board initially proposed a draft rule permitting a pharmacist/pharmacy to not fill a lawful prescription for reasons of conscience” as "further evidence” that access to Plan B was not a problem was also clearly erroneous. See Stormans, 524 F.Supp.2d at 1261. The first draft rule proposed by the Board would have allowed a pharmacist to refuse to fill a lawful prescription only if another pharmacist onsite would dispense the medication without delay. This rule does not support the district court's conclusion that access to Plan B was not an issue. Moreover, *1136 Lukumi teaches us that we must review the rules as adopted, not in their prior versions.

If Appellees' injury was primarily financial, the balance would not tip to Appellees, because the injury would not be considered irreparable. See L.A. Mem’l Coliseum Comm’n, 634 F.2d at 1202 (9th Cir.1980); see also Braunfeld, 366 U.S. at 606, 81 S.Ct. 1144 (rejecting a challenge to a regulation that "may well result in some financial sacrifice in order to observe [appellants’] religious beliefs”).

The State Appellants’ partial opposition to Appellees' Motion to Exceed Type-Volume Limitation was construed by this court, on April 23, 2008, as a motion to strike Section V.B. of Appellees' answering brief, which ad*1142dresses the Title VII claim. We grant the motion to strike.

The new rules, Washington Administrative Code sections 246-863-095 and 246-869-010, are effective as of the filing date of this opinion, and, except to the extent that the district court, upon reconsideration in light of this disposition, issues a preliminary injunction as to the named plaintiffs and their employers, may be enforced in accordance with the law of the state of Washington.